The Fall of Roe: You Thought Dobbs Was Bad? They’re Coming for Brown v. Board
In June 2022, Dobbs v. Jackson Women’s Health Organization overturned more than a half-century of Supreme Court precedent. Five justices voted to deny constitutional protection for a woman’s right to choose and gutted privacy as a fundamental right. Texas and 13 other states now bar abortions in almost all circumstances. Florida, Georgia, and South Carolina have enacted six-week bans.
Writing for the Supreme Court majority, Samuel Alito, a George W. Bush appointee, explicitly compared the death of Roe to the end of state-enforced racial segregation, 68 years before. Back in 1954, in a landmark ruling, Brown v. Board of Education, a unanimous court overruled the doctrine of “separate but equal.” These days, Brown is under attack from Alito’s allies on and off the bench.
In their new book The Fall of Roe, named for Roe v. Wade, the 1973 ruling that previously safeguarded federal abortion rights, Elizabeth Dias and Lisa Lerer masterfully lay out how the cultural right and pro-life movement refused to take “no” for an answer, played the long game, and attained the victory for which they had yearned. Dias and Lerer also capture the somnolence of the left and how “intersectionality” came to divide old allies.
Dias is the New York Times religion reporter. A graduate of Wheaton College, the late Rev. Billy Graham’s alma mater, she holds a master’s degree in divinity from Princeton Theological seminary. Lerer, a veteran of five presidential campaigns, covers politics for the Times. The two of them got Hillary Clinton to speak for the record.
The Democratic presidential nominee in 2016 acknowledges that her party underestimated its adversaries, but doesn’t point the finger at herself.
“We didn’t take it seriously, and we didn’t understand the threat,” Clinton said. “We could have done more to fight.”
“I just think that most of us who support the rights of women and privacy and the right to make these difficult decisions yourself, you know, we just couldn’t believe what was happening.”
“Our side was complacent and kind of taking it for granted and thinking it would never go away.”
Even as polls show that abortion rights have widening public acceptance, the mechanics of federalism have left legislatures in red states to act as a counterforce to the more liberal national ethos, a point stressed in The Fall of Roe.
“Republicans had the state legislatures,” Dias and Lerer write. “They had a top-to-bottom network. They had the court. They had the power to change American life.”
The Fall of Roe also sheds light on the infrastructure that undergirded opposition to Roe. Libertarian-minded donors didn’t particularly care about curbing abortion access and David Koch personally supported abortion rights. That having been said, Freedom Partners, a Koch-driven industry group, donated almost $1 million to anti-abortion efforts, which could be paired on election day with tax cuts and lower regulation.
Said differently, fetuses weren’t the only reasons large checks were being cut to the Federalist Society, or that constitutional originalism had become the civic religion of the right. FDR’s legacy has to be gutted. Social security may no longer be so secure.
Leonard Leo, the driving force behind the Federalist Society, receives particular attention.
“Who’s this little fucking midget?” Donald Trump once said of Leo, a close friend of Justice Clarence Thomas.
Short answer: Leo helped get each of Trump’s Supreme Court nominees across the finish line. Think of him as the straw that stirs the drink.
“After Alito was confirmed to the court, Leo connected him with ideologically aligned businessmen, some of whom had cases before the court,” Dias and Lerer write.
They add that Leo “spent time with Thomas at… a private lakeside resort owned by a major Republican donor, Harlan Crow. Their visits were memorialized in a painting, hanging inside the lodge.”
Thanks to ProPublica’s Pulitzer-winning reporting, the painting is now well known. The group is shown thoughtfully smoking cigars.
Leo’s connections also helped found a nonprofit, the Judicial Crisis Network (JCN), “on the same hallway in a downtown office building as the Federalist Society.”
Which all brings us back to Brown v. Board of Education and where the right goes next.
In Justice on Trial, an examination of Brett Kavanaugh’s elevation to the Supreme Court, conservative talking heads Carrie Severino, of JCN, and Mollie Hemingway, of the Federalist, trashed Brown.
According to Severino and Hemingway, social science wrongly played a role in the court’s calculus. They declared that such decisions “may have been correct in their result but were decided on the basis of sociological studies rather than legal principles.”
Notice the word “may.”
Fast forward to May 2024, when Thomas—who joined Alito’s opinion in Dobbs—turned his fire on Brown.
“Such extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers’ design,” he wrote in a concurrence, sustaining a South Carolina congressional map in the face of voting rights challenge.
As another election looms, abortion and contraception have emerged as campaign issues, to the horror of Trump. On the stump, the presumptive Republican nominee has vacillated over possible restrictions on contraception. Then again, Stormy Daniels testified that Trump did not wear a condom during an encounter Trump still denies, notwithstanding 34 guilty verdicts in the case arising.
As for meting out punishment to women who have abortions, Trump would leave that to the states.
“The states are going to make that decision,” he told Time. “The states are going to have to be comfortable or uncomfortable, not me.”
He also declined to say “no” to states monitoring women, to identify those who terminate pregnancies. Think The Handmaid’s Tale.
In the 2022 midterms, Dobbs cost the Republicans their “red wave.” In 2024, it may lead to another Trump loss and Democrats retaking the House. Right now, things are that close.
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